The Salaries Remuneration Commission v County Government of Kakamega & 4 others
The bottom line
#Kenya's Court of Appeal refused to stop a High Court decision quashing the SRC's 2017 county salary reductions, meaning existing pay structures stay unchanged while the main appeal proceeds.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal by the Salaries and Remuneration Commission is arguable
The court was satisfied, upon perusing the draft memorandum of appeal, that the intended appeal raising grounds on procedural propriety of Gazette Notice No. 6518 of 2017 and validity of the 2013 Gazette Notices is arguable.
The applicant annexed a draft memorandum of appeal itemising grounds including that the judge erred in finding procedural impropriety, erred in finding the 2013 Gazette Notices valid, and failed to find they had lapsed through effluxion of time. The court found these grounds raised arguable points, satisfying the first limb of the Rule 5(2)(b) test without deciding their ultimate merit.
Whether the intended appeal would be rendered nugatory if stay is not granted
The applicant failed to demonstrate nugatory aspect: there was no evidence that state officers could not refund monies paid, and refusing the stay preserved the status quo.
Save for bare allegations, no affidavit evidence demonstrated that state officers and Members of County Assembly would be unable to refund monies paid under the 2013 Gazette Notices, nor prima facie impecuniosity. All parties confirmed state officers were being paid under the 2013 Gazette Notice, so refusing the stay preserved the existing position. The court also held a stay should not create confusion in the legal framework governing remuneration.
The role of public interest in stay of execution applications
Public interest in expeditious resolution of the dispute over state officers' remuneration could be met by fast-tracking the main appeal rather than granting a stay.
The court accepted that the dispute involving salary and remuneration of state officers and members of the County Assembly is of public interest and should be resolved expeditiously. However, it held that the public interest concern and apprehension that members of the County Assembly might not refund monies could be addressed by prioritising the hearing of the main appeal, rather than by granting a stay of the certiorari order.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the twin tests: an arguable appeal and that the appeal would be rendered nugatory if stay or injunction is not granted.
- While the legal duty is on the applicant to prove that an appeal would be rendered nugatory because a respondent cannot repay the decretal sum, once the applicant expresses that belief, the evidential burden shifts to the respondent to show the resources he has.
- A stay of execution should not be granted where it would create confusion and a legal lacuna in the existing legal regime; a stay order should not be a recipe for confusion.
Court orders
#- 1.The Notice of Motion dated 8th January 2019 seeking stay of execution is dismissed
- 2.The intended appeal be listed for hearing on priority basis
- 3.Each party is to bear its own costs in this application
- On appeal from
- High Court of Kenya at Nairobi
- Nairobi Judicial Review No. 5 of 2018
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules - application for stay of execution pending appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "The Salaries Remuneration Commission v County Government of Kakamega & 4 others", Case Analysis (2019). Civil Application No. 8 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/745/eng@2019-05-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.